The long-standing principle of Legal Professional Privilege (LPP) protecting claimants' medical evidence has been dramatically undermined as a result of the recent Court of Appeal case Edwards-Tubbs v JD Wetherspoon PLC [2011] EWCA Civ 136.

In order to present their claim, the claimant is required to build evidence to support their case. Medical evidence sets out details of injuries caused by an accident, so naturally the claimant only wishes wish to rely on – and therefore send to their opponents – a report supporting their case.

LPP protection allows the claimant to set aside reports obtained before legal proceedings are issued and which they don't wish to rely on, but to disclose those they do.

The introduction of the Personal Injury Protocol and the Civil Procedure Rules attempted to restrict the claimant practice of 'expert shopping'.

However, defendant insurance companies' concept of 'cherry-picking' medical evidence would still be possible for claimants to a limited extent, though if an expert's report is unexpectedly unhelpful, is it not reasonable for a claimant to seek another opinion?

The medical expert instructed by the claimant's legal representative has a duty to the court, not the claimant, and is expected to provide an impartial opinion, verified by a formal Statement of Truth.

However careful experts are, medical reports sometimes contain factual inaccuracies that need amending, and which could therefore affect the expert's initial opinion and prognosis. Sometimes an expert's opinion will be strongly disputed by claimants themselves, so an alternative expert's opinion can be sought. Obviously, a claimant would only wish to present a report that supports their case, with which they agree, and which is factually accurate.

Unfortunately for the claimant, the decision in Wetherspoon allows the other party's representatives – with the court's permission – to have access to any medical report obtained after the claimant's legal representative has sent their Pre-Action Protocol initial letter of claim.

This means the court and the other party's representatives can give consideration to evidence which may be faulty, and could influence their assessment of the claimant's injury in a detrimental way, therefore unfairly prejudicing the claimant's claim.

No doubt other satellite litigation will follow this decision, as it seems to be at odds with CPR 1 – the Overriding Objective that the parties are 'on an equal footing'.

Claimant's representatives should take care, however, when instructing an expert, and ensure the letter of instruction is clear, and to ensure that their claimant is aware from the outset that the expert's opinion – whether or not they agree with it – may come to the attention of the compensating party and the court.

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